From Law.com

November 22, 2010

AG issues ruling on lawyers' e-mail addresses

According to a Texas attorney general’s opinion, the State Bar of Texas does not have to release most attorneys’ e-mail addresses in response to Public Information Act requests. In August the State Bar released the e-mail addresses of thousands of Texas lawyers to a member of the public who sued the Bar under the state’s PIA. In its Nov. 19 opinion, the Office of the Attorney General wrote that, to the extent that information at issue constitutes membership records that the State Bar maintains for the Texas Supreme Court, it is not subject to the PIA but is governed by Rule 12 of the Rules of Judicial Administration. “This office does not address questions under those rules,” Justin D. Gordon, an assistant attorney general in the OAG’s Open Records Division, wrote in OR2010-17528. As noted in the opinion, Texas Government Code §552.1176 requires the State Bar to withhold the e-mail addresses of all lawyers who have notified the Bar they want to restrict access to their information. The opinion further notes that §552.137 of the Government Code provides, with some exceptions, that an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure under that chapter. The opinion requires the State Bar, under Government Code §552.137, to withhold from disclosure any remaining e-mail addresses — any not covered by Rule 12 or §552.1176 — except those that are government e-mail addresses of government lawyers. Government lawyers can request to keep confidential their home addresses and home telephone numbers, according to the opinion. In the opinion, the OAG also clarifies that the State Bar now has a “previous determination” on these issues, meaning that the Bar does not have to ask the attorney general for another ruling on these same issues, as long as the law does not change. Without a “previous determination,” the State Bar would have to request an AG’s opinion whenever it received open-records requests for lawyers’ e-mail addresses, Don Jones, the State Bar’s legal counsel, has said in the past. State Bar executive director Michelle Hunter had requested the opinion in a Sept. 3 letter to Attorney General Greg Abbott. The State Bar made that request after receiving a flurry of requests for attorneys’ e-mail addresses. On Aug. 16, State Bar officials released almost 63,000 e-mail addresses of Texas attorneys to Marni von Wilpert, a student at Fordham University School of Law who worked this summer as a law clerk at the Texas Civil Rights Project in Austin. The State Bar initially denied von Wilpert’s request for the e-mail addresses but released the information after she filed von Wilpert v. State Bar of Texas, et al. on Oct. 14 in a Travis County district court. Jones says the Bar released the e-mail addresses to von Wilpert and to Public Citizen, a government watchdog group, because the law was not clear regarding whether the Bar could withhold the information. "I believe at that point there were a lot of different opinions. It wasn’t clear whether they [the e-mail addresses] should or shouldn’t be released at that point,” Jones says. There was confusion over how §552.1176 and §552.137 interact, he says. Jones says State Bar officials, out of an “abundance of caution,” concluded they had to release the e-mail addresses. He says State Bar officials decided to request the AG opinion after receiving additional requests for lawyers’ e-mail addresses. “We couldn’t be happier with the attorney general’s opinion,” Jones says. Tom Kelley, a spokesman for the OAG, says the OAG does not comment on its rulings.-- Mary Alice Robbins

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